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Wednesday, 13 September 2017

How real is 'Reality TV'? Are shows like Big Brother, Love Island, or The Real Housewives' franchise staged so tightly that participants should be regarded as performers or perhaps employees? Please go to the court room to find out.

The French Court of Cassation has been toying with these questions for some years now. In short, the highest civil court concluded that hands-on directing of participants will never make them 'performers' in the meaning of intellectual property law...but it can make them employees. Last June, the same court clarified that taking part in a Reality TV show does not automatically confer the status of employees to participants (Court of Cassation, Soc. Ch., 8 June 2017, No 16-15171 - here in French). One would still have to prove that a relationship of subordination exists between the participant and the production company, to conform with the legal definition of 'employee' under French law. The mere participation in a Reality TV show, however staged and directed, does not suffice. Read on for more detail.

Performers' rights: no!

The French Court of Cassation has consistently refused to extend performers' rights protection to Reality TV participants. The point of law was settled in a decision dating back to 2013, in which the seventy-seven participants in the show 'Temptation Island' sought intellectual property right protection in addition to employment rights (Cour
Cass, Civ 1, 24 April 2013, n° 11-19.901: Bull. 2013, I, No 83, here in French).

The Court of Cassation refuse to associate Reality TV participation with the legal notion of 'performance' protected by performers' rights. In their view, the heart of the matter lies in the fact 'the participants of the show were not given any part to play or text to
recite, that they were only required to be themselves and express their own
reactions when confronted to various situations and considering that the
artificial element of those situations of their chronology does not amount to
grant them the status of actors'. In other words, performing yourself is not performing - regardless of how inauthentic the context of your performance may be.

Technically, nothing in the provisions of the French Intellectual Property formally excludes individuals 'being themselves' and 'expressing their own reactions' from the scope of performers' rights. The Code merely states that: 'performers shall be those persons who act, sing, deliver, declaim, play in or otherwise perform literary or artistic works, variety, circus or puppet acts' (Article L 212-1 - here in English). Nevertheless, the Court of Cassation saw it unfit to broaden the legal category of 'performers' to Reality TV show participants. This interpretation is not surprisingly as a similar conclusion, in 2008, in a dispute where the lead 'character' (so to speak) of the popular documentary film 'Etre et Avoir' sought the legal status of performer (Cour Cass, Civ 1, 13 November 2008, No
06-16.278, « Etre et avoir » : JCP
2009, N 25, 30 §3 obs. Caron - here in French). His claim was rejected as the Court assimilated his input to 'being oneself' in front of the camera not performing.

Employment rights: yes...but not always!

The claimants of the 2013 Temptation Island case may have lost their battle on the grounds of performers' rights but, in the same decision, they managed to secure the status of employee for their participation in the show. Indeed, the Court of Cassation confirmed the contract tying the participants to the production company were to be classed as contracts of employment, triggering employment law protection. The production company meticulously controlled and regulated the activities of participant throughout the shoot to the extent that the Court could establish a relationship of subordination - a key feature of the employer-employee relationship under French law. On this point, the 2013 decision of the court reads: "A relationship of subordination existed between the production crew members and the participants, it was materialized in the "Bible" [nickname of the brief], which detailed the scheduling the activities of each day and the progress of compulsory filming sessions, in the careful rehearsals of scenes, in the direction of interviews which lead the interviewee to say what was expected by the production". In the same decision, the Court also refers to the fact that the production company controlled what participants wore, decided their daily working hours, enforced financial sanctions in cases of early departure from the set, and held their passports and phones.

However, the 2013 decision is not be interpreted as a blanket statement according to which all Reality TV participants were employees under French law. Not all show configurations or production companies are as controlling as the one described in the Temptation Island case. This is precisely what the Court of Cassation reminded us in their decision dated 7 June 2017 (Court of Cassation, Soc. Ch., 8 June 2017, No 16-15171 - here in French).

The Fiasson family in 'Families of Explorers', claimants in the 2017 case

The 2017 case concerned a so-called Reality TV game show titled Families of Explorers. The 'game' had five families compete against each other to win various money prizes throughout the competition. The families were sent to the Simson desert in Australia where they faced various physical challenges and 'survival' tasks. The claimant in the case ultimately lost the game, and the 150,000 euro prize went to one of their opponents. The claimant subsequently brought a case against the production company to seek remuneration as employees for their participation in the show. In first and last instance, the Courts rejected the explorers' claim. In the opinion of the court, the 'rules' of the game could not be portrayed as the basis for a relationship of subordination as in the Temptation Island case. The claimants' contractual commitment to the production company outlined clearly four different aspects: the rules of the game, a confidentiality agreement pending filming and production, an assignment of the family members' personality right, and a fixed-term employment contract for one day of interviews paying 9 euros per hour. None of these agreements amounts to an employer-employee relationship for the duration of the show. Additionally, the Court held that nothing in the evidence submitted to court would suggest the claimants intended to take part in the show as 'employees' either. The object of the contract was identified to be the mere participation of the claimant and his family in a TV show. Legally, the only basis for remuneration for such kind of contribution lies in monetizing his personality rights, which he did. Unfortunately, it seems that the Temptation Island jurisprudence is of no use for sore losers, as the Court of Cassation does not intend to broaden its application in practice.

Back to IP law: what now?

Putting matters of employment law to one side, where does this leave us in terms of intellectual property? In France, 'acting oneself' or 'being oneself' on record precludes the application of performers' rights. However, if this line of jurisprudence is to be applied to all genres, we may see other kinds of performance excluded from the scope of performers' rights. Interviews are one example. If so, production companies may rejoice over the decision as it simplifies contractual arrangements. So might the many cultural institutions who hold archives featuring millions of hours of oral history on records, as they have one less IPR to worry about clearing.

Whether other jurisdictions, such as the UK, will follow the same path is a question yet to be answered. After all, France like most countries, modeled domestic performers' rights after the provisions of the Rome Convention. Assuming a homogeneous interpretation of similar national provisions might not be entirely absurd. Yet we all remember Infopaq.

Due to their vagueness, the dispositions of the 1988 Copyright, Designs and Patents Act, could be made to swing either way by the courts - that is to include or exclude individuals 'being themselves' on record (s. 180(2)(a) to (c)). It will very much depend on the courts' willingness to widen the application of performers' rights or not. The discussion would certainly lend itself to a good old-fashioned exercise of legal interpretation juggling between legislative intent, statutory wording and the 'ordinary meaning' judges are expected to presume from such wording. To this Kat's knowledge, 'acting oneself' as a point of law has not been subject to judicial scrutiny in the UK, to date. This Kat is very keen to be proven wrong on this, so do say if it is the case! In the meantime, we're all 'well jel' of the French courts intrigues.

2 comments:

PM
said...

"In France, 'acting oneself' or 'being oneself' on record precludes the application of performers' rights. However, if this line of jurisprudence is to be applied to all genres, we may see other kinds of performance excluded from the scope of performers' rights. Interviews are one example. If so, production companies may rejoice over the decision as it simplifies contractual arrangements. So might the many cultural institutions who hold archives featuring millions of hours of oral history on records, as they have one less IPR to worry about clearing."

You would (or might) be dealing with rights in a work (literary work), never with rights in performances.

In the UK, most likely yes I agree. In France however, courts have been reluctant to regard TV shows (notably game show or entertainment show for children) as 'works of the mind' as defined by the IP code (i.e. copyright work). In the documentary case mentioned in the post, the Court refused to recognize copyright in the words of the teacher because it was a 'lesson' or mere dialogues pertinent to the every day life of a teacher, nothing more 'original'. Some have criticized this decision for blending the notion of 'originality' with ideas of 'novelty' or 'creative quality'. It seems to me that reality TV is blend of these two types of expression, the 'game show' participation and featuring on a documentary.

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